Excerpt:.....paid to respondent no. 2 when he had performed, discharged and shared the responsibilities of the post of blaster. in these circumstance, i am of the opinion that the matter whether respondent no. 2 should be paid the difference between the wages of borer and blaster was a matter incidental to the matter referred to the tribunal. i am, therefore, unable to accede to the contention of the learned deputy government advocate that the tribunal has acted in excess of its jurisdiction. the award of the difference of wages for the period april 0, 1958, to april 20, 1961 cannot be said to bad.;(b) constitution of india - articles 226 & 227 and industrial disputes act 1947--section 109)--award of difference of wages of borer & blaster not in excess of jurisdiction no grave miscarriage of..........of the officials of the board was assigned the duties, functions and the responsibilities of the post blaster and servashri amir ahmed, charomam khan and gop singh, borars were posted under the concerned workman by the department to work for the ring, performing the functions attached to the post of borer.i have already reproduced one of the reliefs hereinabove which was claimed by respondent no. 2 in the statement of claim. the office order (ex. 5) dated april 30, 1958 is as under;in continuation of this office order no. 728/aen/ru gwb/dated the 29th april, 1958 shri budha singh. borer is to immediately take charge of the pipar unit from shri m.s. chakrvarty who is transferred to makran unit budhasingh borer will work as site incharge till a new blaster is deputed to pipar unit.it is.....

Judgment:

S.K. Mal Lodha, J.

1. In this petition under Articles 226 and 227 of the Constitution of India, the petitioners (the Chief Engineer, Rajasthan Ground Water Board, Jodhpur and State of Rajasthan) have prayed that the award of the Industrial Tribunal, II, Rajasthan. Jaipur (for short' the Tribunal') dated June, 29, 1976 may be quashed and it may be declared that respondent No. 2 Budhasingh Choudhary is not entitled to get the difference between the pay of Blaster and Borer from April 30,1958 to April 20,1961.

2. The material facts leading to this writ petition are as follows: The State Government vide its notification No. F. 1 (1)(342)L/72 dated March 6,1973 made reference to the Industrial Tribunal-I for adjudication of the dispute. The dispute referred was whether the action of the Chief Engineer' Rajasthan Ground Water Board, Jodhpur in not treating its workman Shri Budhasingh, who is being represented by the Rajasthan Ground Board Karamchari Union, Jodhpur, not to have been appointed on the post of Blaster from April 30,1958 and also not promoting him on this post in future, is proper and legal and to what relief the workman is entitled? The case was, however, transfererred to the Tribunal for dispasal. On behalf of respondent No. 2 statement of claim (Ex 3) dated February 26,1974 was filed on February 27,1974. One of the reliefs asked in the statement of claim is as under:

That the concerned workman during the period of 30th April, 1958 to 21st April, 1961 in which the concerned workman had performed, discharged and shared the responsibility of the post of Blaster may be restored, rank, position, grade and be p'id emoluments of the post of Blaster.

Reply (Ex Rule 1) to the statement of claim was filed on behalf of the Chief Engineer, Ground Water Board, Jodhpur. After enquiry, the Tribunal answered the reference in the affirmative but it held that respondent No. 2 is entitled to recover the difference of pay between Blaster and Borer for the period April 30,1958 to April 20 1961. The petitioner ha3 filed this writ petition questioning the legality of the award.

3. On behalf of respondent No. 2. reply has been filed to the writ petition on November 18,1979 contesting it on various grounds

4. When the matter came up for orders on the stay application, learned Counsel for the parties stated that while disposing it argument may also be heard on the main writ petition Accordingly, I have heard Mr. Rajesh Balia, learned Deputy Government Advocate and Mr. D. D. Parihar, learned Counsel for respondent No 2

5 Mr. Rajesh Balia, learned Deputy Government Advocate streneously urged that in view of the findings, which the Tribunal has recorded, it could not make an award directing the petitioner to pay the difference in wages of Borer and Blaster from April 30,1958 to April 20,1961 as there was no reference to the Tribunal regarding this dispute under Section 10(4) of the Industrial Disputes Act, 1947 (for short 'the Act' hereafter) and, therefore, the discretion made in the impugned award being in excess of jurisdiction should be quashed.

6. Mr. D K. Parihar, learned Counsel for respondent No. 2 submitted that the discretion made by the Tribunal was within jurisdiction as this was included in the dispute referred and that, at any rate., it is a matter incidental to the main dispute referred to it. He also urged that having regard to the facts and circumstances of the case as the order cannot be said to have caused miscarriage of justice and as the petition challenging the award dated June 29,1976 was filed on July, 9,1979, after a lapse of three years extraordinary jurisdiction under Articles 226 and 227 of the Constitution, which is discretionary, should not be exercised in favour of the petitioners.

That vide order No. 774/78 dt 20-4-58 Shri Budha Singh was ordered to work at site incharge only till a new Blaster is deputed in Pipar Unit and on appointment of Shri Kalyan Singh he was ordered by the Executive Engineer, R.U.G. W.B., Jodhpur vide No 4192 dated 8-7-1960 to hard over the full charge of Pipar Unit to Shrs Kalyan Singh, thus the above order of applicant to work as site incharge was a provisional one.

Pars 18 of statement of claim Ex. Rule 9) is as under:

That although Shri Budha Singh was appoined as Borer yet he had never carried out the functions and responsibilities of the said post as the concerned workman under an express order of the officials of the Board was assigned the duties, functions and the responsibilities of the post Blaster and Servashri Amir Ahmed, Charomam Khan and Gop Singh, Borars were posted under the concerned workman by the Department to work for the ring, performing the functions attached to the post of Borer.

I have already reproduced one of the reliefs hereinabove which was claimed by respondent No. 2 in the statement of claim. The office order (Ex. 5) dated April 30, 1958 is as under;

In continuation of this office order No. 728/Aen/Ru GWB/dated the 29th April, 1958 Shri Budha Singh. Borer is to immediately take charge of the Pipar Unit from Shri M.S. Chakrvarty who is transferred to Makran Unit Budhasingh Borer will work as site incharge till a new Blaster is deputed to Pipar Unit.

It is clear from the office order that respondent No. 2 was required to work as site incharge from April 30,1958 and, therefore, he was promoted to the post of Blaster from April 21, 1961. The Tribunal has* observed as under:

In fact he was net qualified to be appointed as a Blaster from 30-4-58. Shri Gupta could not show as to how he could be deemed to have been appointed as a Blaster from the date of working as such i.e., 30-4-58. though he was not qualified to be appointed on the post. Still looking to the facts of this case, Shri Sudha Singh is entitled to the difference in wages of a Blaster and Borer from 30-4-1958 to 20-4-61 on the principle of equal pay for equal work.

The Tribunal answered the reference in affirmative holding that respondent No 2 could not be appointed on the post of Blister from April 30,1958 and therefore, not promoting him on this post in future was proper and legal. As to what relief respondent No. 2 was entitled, the Tribunal, applying the principles of 'equal pay for equal work' directed that respondent No. 2 is entitled to the difference in wages of Blaster and Borer.

9. Section 10(4) of the Industrial Dispute Act, 1947 is as under:

10(4) Where in an order referring an industrial dispute to a labour Court, Tribunal or National Tribunal, under this Section or in a subsequent order, the appropriate Government has specified the points of dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be' shall confine its adjudication to those points and materials incidental therein.

The question whether the adjudication of one matter is incidental to the adjudication of another matter depends on the facts of the case, the pleadings of the parties and the issues which properly arise for determination on the pleadings. In view of the statement of claim (Ex Rule 3) and the affidavit (Ex Rule 2) which was filed in support of the reply to the statement of claim (Ex. Rule 1), it was implicit in the dispute referred to the Tribunal as to what emoluments are to be paid to respendent No 2 when he had performed, discharged and shared the responsibilities of the post of Blaster. In these circumstances, I am of the opinion that the matter whether respondent No. 2 should be paid the difference between the wages of Borer and Blaster was a matter incidental to the matter referred to the Tribunal. I am, therefore, unable to accede to the contention of the learned Deputy Govt. Advocate that the Tribunal has acted in excess of it jurisdiction. The award of the difference of wages for the period April 30, 1958, to April 20, 1961 cannot be said to be bad.

10. The matter can be viewed from another aspect also The award was made on June 29,1976 It appears from the certified copy of the impugned award that the application for copy was made on December 3, 1977. The copy was delivered on December 20, 1977. The writ petition was filed on July 9, 1979. It was filed after the lapse of three years. The petitioners have sought issuance of writ of certiorari. It is well settled that the writs, which are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the sub-ordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice In Swarnsingh v. State of Punjab (1) : AIR1976SC232 , it was held that the writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice. I have already found above that payment of difference of wages of Blaster and Borer for the period April 30,1928 to April 20,1991 cannot be said to be in excess of jurisdiction and as the learned Deputy Government Advocate could not show that this has caused grave miscarriage of justice it will not be proper for me to quash the direction relating to payment of wages for the period April 30.1958 to April 20,1961 when responded No. 2 was ordered to work as Incharge Pipar Unit and was required to perform duties of Blaster, particularly when the award in this regard is chall enged after the lapse of three years from the date of its making.

11. No other point survivies for may consideration.

12. The result is that there is no merit in this writ petition and it is, accordingly, dismissed without any order as to costs.